A San Diego
Superior Court judge must reconsider an order requiring that many emails sent
to or from the San Diego city attorney’s personal account, relating to city
business, be publicly disclosed, the Fourth District Court of Appeal ruled
yesterday.

Div. One ruled
that the League of California Cities, which was the sender or recipient of many
of City Attorney Jan Goldsmith’s emails, has standing to challenge the order,
even though it was not a party to the trial court litigation between the city
and San Diegans for Open Government.

Judge Joel R.
Wohlfeil had ruled otherwise. The appellate court also ruled that Wohlfeil
erred in declining to review some of the emails in camera before ruling that
they were not covered by the attorney-client privilege.

The open
government group, commonly known as SDOG, brought a California Public Records
Act request for all of Goldsmith’s personal account emails that related to city
business, sent or received during the years 2008 through 2013. The city
asserted that various emails were exempt from disclosure, including those
between an individual identified as the League of California Cities’ legal
assistant and attorneys who were league members.

The exemption
claims were based on the records assertedly not being public records or being
subject to privilege.

SDOG petitioned
for a writ of mandate, and Wohlfeil ordered that the city provide a privilege
log. After that was done, he declined to review the emails in camera, concluded
the city failed to meet its burden of proof, and ordered production of the
emails.

The league
petitioned for a writ of mandate, and the Court of Appeal stayed the order and
issued an order to show cause.

SDOG’s Standing
Argument

SDOG argued that
the petition should be dismissed because the CPRA provides that orders
compelling disclosure are reviewable only by writ, and that only “a party” may
seek a writ. The league argued that “party” should be broadly interpreted to
include the holder of a privilege when the trial court’s order requires
disclosure of documents as to which the privilege was asserted in the trial
court.

Justice Richard
McIntyre said the league had the better argument, and that the holder of a
beneficial interest in the outcome is a “party.”

Addressing the
merits, the justice said the trial judge was correct in holding that the city
failed to prove the privilege applied, but that he should have reviewed the
emails in camera before ordering disclosure.

The league had
argued that emails related to Goldsmith’s work on the league’s Legal Advocacy
Committee, which makes recommendations as to whether the league should
participate in litigation, as an amicus or otherwise, were not public records
because the league is a private group. McIntyre concluded otherwise, noting
parenthetically that there is a case pending in the state high court as to
whether documents stored on officials’ private electronic devices can be held
public records under the act.

Who’s the
Client?

With respect to
attorney-client privilege, the justice said it was unclear, with respect to
emails sent by lawyers who were league members to other members, who was the
attorney and who was the client, and no evidence was offered that the
communications were intended to be confidential.

As to
communications between the purported legal assistant and the other league
member, there was “no competent evidence” that the person who sent the emails
actually was acting as the attorney’s agent or that the emails “were actual
communications between an attorney and a client,” McIntyre said.

The justice also
wrote, however, that a judge hearing a CPRA case involving a claim of privilege
must examine the allegedly privileged materials if there are “threshold factual
questions” that can be answered by a review and the party asserting the
privilege asks for one. That was, McIntyre said, the case with the legal
assistant’s emails, since the review might establish that they were sent on the
league attorney’s behalf.

The case is League
of California Cities v. Superior Court (San Diegans for Open Government), 15
S.O.S. 5163.